Medical marijuana Archives - Florida Politics

State tries to remove judge in medical marijuana dispute

Accusing him of bias, Florida health officials are asking that Administrative Law Judge John Van Laningham be removed from a case involving a medical marijuana license.

The highly unusual request came two days before a hearing was supposed to begin in a challenge filed last month against the state Department of Health by Homestead-based Keith St. Germain Nursery Farms.

In an affidavit filed Tuesday, state Office of Medical Marijuana Use Executive Director Christian Bax accused Van Laningham of having “prejudged the issues in this matter” and attempting to help St. Germain.

“Based on all of the facts set forth above, I have firmly concluded that the department cannot receive fair consideration of the issues and will not receive a fair final hearing in this matter if ALJ Van Laningham remains assigned as the administrative judge,” Bax said.

The tug-of-war between the judge and health officials escalated, with the judge chiding the state, lawyers for Bax refusing to back down and the nursery accusing the department of judge-shopping.

Part of Bax’s complaints about Van Laningham centered on a separate marijuana-related challenge in which the judge ruled against the health department. In that case, Van Laningham scalded agency officials for failing to follow their own rules when scoring applications for the highly coveted marijuana licenses.

The department’s “arbitrary scoring method fatally undermines its preliminary rankings, which would not survive even the most deferential standards of review,” Van Laningham wrote in a 2016 recommended order in the case involving the nurseries Plants of Ruskin and 3 Boys Farm.

Van Laningham ultimately decided that the agency should grant licenses to the two nurseries, but Bax’s office rejected his findings. Plants of Ruskin and 3 Boys Farm ultimately got licenses because of a change passed by the Legislature.

In the affidavit cited in the motion to disqualify Van Laningham, Bax said the judge had no business evaluating what method was used to score applications because that issue wasn’t part of the challenges.

Bax accused Van Laningham of making “gratuitous, derogatory comments about the department insinuating that the proposed recommended order filed by the department was designed to be deceptive and hide the department’s true positions from him, as the presiding officer.”

Setting off a flurry of filings, Bax’s lawyers Tuesday asked the director of the Division of Administrative Hearings, Robert Cohen, to disqualify Van Laningham and reassign the case to another judge.

The same day, Van Laningham canceled the hearing, which was scheduled to start Thursday, saying he had to decide on the agency’s request. He noted the ruling “requires prompt disposition” but that he had up to 30 days to rule.

Lawyers for the health agency immediately filed an angry objection to Van Laningham’s cancellation of the hearing and again demanded that the director of the division reassign the case. Florida law requires that a hearing be held by Monday, lawyers for the state argued.

But in a stinging rebuke, Van Laningham wrote that an administrative procedures law “provides no such vehicle” for the chief judge to consider the agency’s objection and that Van Laningham himself would decide whether he should be disqualified.

“To summarize, and repeat for emphasis, each case pending before DOAH has one, and only one, presiding judge at a time,” he wrote in a notice to the parties. “The undersigned is the presiding judge in this matter, notwithstanding the motion to disqualify, and will remain the presiding judge in this matter unless a successor judge is assigned in the ordinary course of the proceeding pursuant to regular, legally authorized procedures, which do not include the filing of appeals (by any name or in any form) with the chief judge (or any other judge) of DOAH who is not the presiding judge.”

The health agency is also embroiled in a jurisdictional dispute with Van Laningham regarding the challenge. Lawyers for the state agency maintain the case should be handled internally, rather than through the administrative hearing process.

The health department has tried four times to get Van Laningham to dismiss the case. He rejected each effort.

Lawyers for St. Germain accused health officials of trying to “judge-shop,” arguing that Van Laningham’s prior rulings against the agency can’t be a reason to disqualify the judge.

Health officials recently adopted a rule that requires applications for medical-marijuana licenses to be scored “quantitatively, rather than ranking them,” St. Germain’s lawyer, D. Kent Safriet, argued.

“This begs the question that if the ALJ’s analysis was so off the mark, why did the department follow the analysis in adopting the new rule? It appears the department simply cannot admit it made a mistake. Instead, the department takes aim at the ALJ,” Safriet wrote in a motion filed Wednesday.

St. Germain filed the challenge last month after Bax’s office denied the grower a license in August, following the passage of a new law.

Under the law, passed during a June special session, health officials were required to issue licenses to applicants who had legal challenges pending as of January or who scored within one point of the highest-ranked applicants in five regions.

St. Germain came in second in the Southeast region, scoring 1.1875 points below Costa Farms, which received a license. Health officials said St. Germain is ineligible for a license because the difference between the scores was greater than one point.

Also Tuesday, St. Germain filed a lawsuit in Leon County circuit court, alleging that Bax’s office is stalling on providing public records related to the case.

Republished with permission of the News Service of Florida.

Regulators shoot down medical marijuana payment proposal

State regulators have rejected a California bank’s proposal to operate in Florida as a financial middleman for medical marijuana-related transactions.

The Office of Financial Regulation turned down a request from PayQwick for a declaratory statement so it could operate here.

Christian Bax, director of the Department of Health’s Office of Medical Marijuana Use, gave a presentation Wednesday to the House Health Quality Subcommittee on the state’s regulation of medicinal cannabis.

Though he did not mention the PayQwick case, decided in late August, Bax did say there has been “reticence” on the part of the banking industry to get involved with marijuana sales.

Florida has more or less legalized medical marijuana, through statute and constitutional amendment, but selling marijuana still is a federal crime. And banking, by its nature as “interstate commerce,” falls under federal law.

Under President Barack Obama, however, federal prosecutors did not criminally pursue those, such as “the seriously ill and their caregivers,” who distribute and use the drug “in compliance with an existing state law.”

Still, “life would be a lot easier for us and for patients if there were online payments,” Bax told the panel.

PayQwick’s “description of its contemplated business model is expansive,” OFR’s order says.

“For example, (it) describes its (potential) clients as not only registered medical marijuana patients, but also members of the public purchasing marijuana from a licensed retailer/dispensary.”

Florida’s current system is “vertically-integrated,” meaning businesses grow, process and sell their own marijuana, with each licensed as a medical marijuana treatment center, or MMTC.

But PayQwick based its request “on the erroneous assumption that the … distribution of marijuana is legal,” the order says. Because of that, “a declaratory statement is not available.”

PayQwick’s system, an “electronic payment hub,” was also aimed at making it easier for “ancillary” concerns, such as security alarm companies, to do “legal business” with the MMTCs.

Users would download an app to transfer money from a “settlement account” to a “sub-account,” then to a “bank or credit union.”

PayQwick would have made money “by charging a percentage-based service fee for each re-allocation of funds from one client to another,” the OFR order says.

State seeks to scuttle marijuana smoking case

Attorney General Pam Bondi‘s office is asking a judge to toss out a challenge to a new law that bars patients from smoking medical marijuana.

A 39-page motion filed last week in Leon County circuit court argues that a 2016 constitutional amendment that broadly legalized medical marijuana did not require smoking to be allowed – and that lawmakers had good reasons to approve a smoking ban.

Orlando attorney John Morgan, who largely bankrolled the medical-marijuana legalization drive, filed a lawsuit in July contending that lawmakers violated the constitutional amendment by barring smoking.

The disputed law was passed during a June special session, as the Legislature took steps to carry out the constitutional amendment.

The law allows medical marijuana to be used in other ways, including by allowing patients to vaporize, or “vape,” marijuana products. The motion to dismiss the lawsuit said lawmakers pointed to health reasons for approving the smoking ban.

“The Legislature considered several significant health-related factors and reasonably determined that the harms caused by smoking were ample reason to exclude smoking from the definition of `medical use,’” the motion said.

It also contended that the constitutional amendment did not specify that smoking would be allowed.

“Had the framers or the voters intended to legalize smoking by adopting the amendment, they could have done so,” attorneys in Bondi’s office wrote. “There was ample opportunity for smoking to be specifically provided for or required in the amendment. But however hard plaintiffs may look for it, a smoking requirement is not in the amendment.”

Circuit Judge Karen Gievers has not scheduled a hearing in the case, according to an online docket.

Republished with permission of the News Service of Florida.

Grower asks state for edible cannabis rules

Surterra Wellness, the Atlanta-based company with medical cannabis dispensaries in Tampa and Tallahassee, on Monday asked the state to let it begin offering edible products in Florida.

Voters last year overwhelmingly approved a constitutional amendment legalizing medical cannabis, and lawmakers passed legislation in June to implement the amendment.

That bill allows patients to use cannabis pills, oils, edibles and “vape” pens with a doctor’s approval, but it bans smoking.

Florida law requires the state’s Department of Health to determine “any shapes, forms” edible products can take and what other ingredients they can contain. No medical marijuana provider can offer edibles after the rule goes out.

Surterra officials say this means no Florida patient will have access to legal edible marijuana till the Department makes these rules, and they have yet to initiate that on their own. Thus, the petition to get that process moving.

The Department of Health did not immediately respond to a request for comment Monday morning.

“Many patients have been seeking edible products because it is the best format for them to find relief,” said Wesley Reynolds, president of Surterra Florida.

“Surterra Wellness has and will continue to fight for access to medical cannabis, and this is just a continuation of that cause,” he added. “The more available options for people, the more likely they will be able to use a cannabis product instead of highly addictive and easily abused opiates.”

“The department is working diligently to implement the many requirements of Article X Section 29 of the Florida Constitution and section 381.986 Florida Statutes,” says  Mara Gambineri, Communications Director with the Florida Dept. of Health. “Section 381.986 Florida Statutes directs the department to create rules related to edible marijuana products, and we fully intend on following the law. We remain committed to moving this process forward and will do so in an expedient and thoughtful manner.”

Surterra is one of seven companies licensed in Florida to sell a variety of marijuana products. The number is expected to rise to 17 later this month.

State to miss deadline for marijuana licenses

Health officials won’t be able to meet a legislatively mandated Tuesday deadline to hand out five new medical-marijuana licenses, the head of the state’s Office of Medical Marijuana Use said Friday.

Christian Bax, the marijuana office’s executive director, blamed the delay on Hurricane Irma and a pending challenge to a recently passed law that ordered the Department of Health to expand the number of medical marijuana licenses.

The law, passed during a June special session, was designed to carry out a November constitutional amendment that broadly legalized medical marijuana in Florida. A key part of the law was increasing the number of operators in what could turn into a highly lucrative industry.

The law called for an overall increase of 10 licenses, some of which have already been awarded, by Oct. 3. It also specified that one license go to a black farmer who had been part of settled lawsuits about discrimination by the federal government against black farmers.

A lawsuit filed this month challenges the constitutionality of that part of the law, alleging that the statute is so narrowly drawn that only a handful of black farmers could qualify for the license. The lawsuit, filed by Panama City farmer Columbus Smith, contends that the measure is what is known as an unconstitutional “special law.”

In a letter to legislative leaders signed Friday, Bax wrote that his office has “worked diligently to implement” the new law, but that the issuance of five new medical marijuana licenses by Tuesday posed an “extraordinarily challenging deadline.”

In addition, response and recovery efforts related to Hurricane Irma “necessitated the mobilization of all available department assets for nearly two weeks,” Bax wrote.

Bax also blamed his office’s inability to meet the deadline on Smith’s lawsuit.

“The OMMU (Office of Medical Marijuana Use) is aware of its important role in continuing to move this process forward to provide patient access as quickly and safely as possible. However, recent history has emphasized the importance of getting the MMTC (medical marijuana treatment center) licensure process right the first time,” he wrote.

Marijuana industry insiders have long believed that the agency would not meet the deadline, but Bax’s Friday letter informing lawmakers of the delay made it official. As late as last week, a Department of Health spokeswoman said that the deadline remained “the goal.”

The evolution of the medical-marijuana industry in Florida has been fraught with legal and administrative challenges since its inception after a 2014 law legalized low-THC treatments for a limited number of patients.

Bax pointed out that 13 administrative challenges were filed after the agency issued the first medical-marijuana licenses in 2015. The agency is still in litigation over two of the challenges, he said.

The upcoming licenses will be the first time the state has opened the application process to businesses that did not participate in the first selection process in 2015, creating intense interest in what could be one of the biggest medical-marijuana markets in the nation.

Bax’s office developed a new system to evaluate the applications, relying on an outside vendor to supply “subject matter experts” to use a “blind-testing” process to grade the submissions. Requests for quotations from potential contractors were due a week ago — just seven days before Tuesday’s deadline.

State Sen. Rob Bradley, a Fleming Island Republican who has been instrumental in the development and passage of the state’s medical marijuana laws, praised Bax’s office for the revised selection system but called the delay a letdown.

“I’m pleased with the rule that set up the process for reviewing and approving applications. It’s a much better process than the low-THC process, and I think it will produce better results,” he told The News Service of Florida in a telephone interview Friday. “I’m disappointed that they didn’t complete their work in a timely manner with regard to the approval of the five licenses that are subject to competitive applications. They need to finish their work by the end of the year and before session starts (in January).”

Still, Bradley said: “I’d rather have them right than do it quick.”

Republished with permission of the News Service of Florida.

AGRiMED, a passionate player deserves Florida medical marijuana license

If you had any doubts about the keen interest in medical marijuana in Florida, you don’t have to look any further than how quickly demand is outpacing supply.

That’s why the Florida Department of Health is preparing to issue five additional licenses for medical marijuana businesses in early October. The people want it, and entrepreneurs are racing to get to the front of the line to meet that demand.

It’s no surprise that medical marijuana is popular — better than seven out of 10 voters approved Amendment 2 last November. State officials are now required to issue the new licenses, which will help expand treatment options for individuals suffering from various debilitating diseases.

So far, most of the operators who have sought the highly prized — and potentially quite lucrative — licenses have focused on medical marijuana as an investment opportunity. But one of the candidates for the next round caught my eye because it approaches things from a different perspective, one very much affected by its founder’s personal experience.

AGRiMED Industries is among several applicants hoping to bring its business to Florida.

While doing some research on the latest contenders, I found that AGRiMED practically lapped the field in Pennsylvania, finishing miles ahead of everyone else in that state’s license process.

The organization’s CEO, Sterling Crockett, has since relocated to Florida. He brings with him an experienced and fully integrated company of dedicated professionals. But he also brings something else — the kind of inspiration that comes with almost losing a child.

Crockett came up with the idea for AGRiMED shortly after his daughter was diagnosed with kidney cancer — three weeks after giving birth to his first grandchild. His daughter suffered through the persistent and painful symptoms associated with her disease until Crockett helped her discover the tremendous healing benefits of medical cannabis. Today, Crockett cherishes every moment he can with his daughter and now granddaughter who is entering first grade.

With that experience pushing him forward, Crockett built AGRiMED with a focus on more than just the bottom line. To him, it’s also about sharing the medicinal benefits of cannabis-derived products, to help ailing people who can’t find relief any other way. To achieve his goal, he assembled a leadership team with over 200 years of collective medical and professional experience.

And AGRiMED is different in another way, too — it is a minority-owned and operated company that works to promote the next generation of minority entrepreneurs. Crockett, an African-American, aims to empower underserved and underrepresented communities to participate in the substantial growth potential of medical marijuana. In addition to funding research into the use of cannabis-derived medicines for sickle cell anemia, his company partnered with Lincoln University to provide internships and training to students for early experience in the industry.

I’m sure there are many worthy business operators among the individuals trying to land one of the five licenses the Department of Health will award soon. But wouldn’t it be nice to think there’s room in there for a company that was born of a passion for alleviating one woman’s suffering … that serves a minority community often overlooked by economic opportunity … and that works to build the next generation of executives?

Medical marijuana provider Surterra to pitch in on Irma relief

A Tampa-based medical marijuana company said it will donate a chunk of the total sales of a new vaporizer pen to Hurricane Irma relief efforts.

Surterra Wellness is one of the largest marijuana cultivators in the blooming Sunshine State medical marijuana industry, and among its products are a series of vaporizer “pens” – devices similar in size and shape to the electronic cigarettes found in many gas stations – that deliver marijuana extracts to patients via an inhaled vapor.

Unlike run-of-the-mill vaporizers the new device, the $45 “Relief Vaporizer Pen,” never needs to be charged.

Florida’s implementation of medical marijuana does not allow the plant to be smoked, and it must instead be consumed as an oil, tincture, vapor or some other non-combustable method.

The company said without the tech in the new pen the many Florida patients who lost power due to Irma would have had to go without a way to administer their medical cannabis. The company said added that they planned to celebrate the new tech by putting a percentage of its sales toward Irma relief efforts.

“In the aftermath of Hurricane Irma, we want to give some relief with Surterra’s Relief products,” Surterra CEO Jake Bergmann said. “Surterra wants to help more people every day with the highest quality cannabis, and this hurricane served as a great reminder that we must continue to strive for advancements in cannabis options so Floridians never have to go without their medical marijuana treatments.”

The company plans to donate 10 percent, or $4.50 per unit, of Relief Vaporizer Pen sales to relief efforts through the end of the month.

Surterra’s facilities took some hits during the storm, which left millions without power and caused billions of dollars in damages. After Irma cleared the Bay area, the company tweeted out that despite “minor flooding” and a “missing roof” that all the plants at its indoor grow operation were spared.

In the week since Irma, Surterra said all of its dispensaries have reopened and deliveries have resumed statewide. Medical marijuana patients can call (850) 391-5455 to place an order with the company or learn more about their product line.

Nursery challenges denial of marijuana license

A Homestead-based nursery is challenging a decision by state health officials to deny the grower a medical marijuana license.

The Florida Department of Health last month rejected a request by Keith St. Germain Nursery Farms, which sought a license under a law approved this year.

The new law, passed during a June special legislative session, ordered health officials to issue licenses to applicants who lost out to competitors during a first round of medical marijuana licensing in 2015. Under the law, health officials were required to issue licenses to applicants who had challenges pending as of January or who scored within one point of the highest-ranked applicants in five regions. St. Germain came in second in the Southeast region, scoring 1.1875 points below Costa Farms, which received a license. Health officials said St. Germain is ineligible for a license because the difference between the scores was greater than one point.

But in a petition filed Friday in the state Division of Administrative Hearings, St. Germain’s lawyer argued that the department erroneously calculated the scores by not rounding to the nearest whole number, which would have made the nursery eligible for a license.

The department’s evaluators used whole numbers to score different categories within the original applications, D. Kent Safriet, a Tallahassee lawyer representing St. Germain, wrote.

“Because the underlying data was only precise to a whole number, resulting calculations can similarly only be precise to the nearest whole number; numbers to the right of the decimal point are properly characterized as spurious,” Safriet argued. Safriet is relying in part on a decision by Administrative Law Judge John Van Laningham in an unrelated challenge to a license issued in the Southwest region.

In his evaluation of the applications in that challenge, Van Laningham wrote that “numbers to the right of the decimal point are spurious digits introduced by calculations carried out to a greater precision than the original data … which were awarded in whole numbers.” Van Laningham is also the judge in the St. Germain challenge.

Health officials have until Oct. 3 to issue five additional medical marijuana licenses. Lawmakers expanded the number of licenses in response to a constitutional amendment approved by Florida voters last fall that legalized medical marijuana for patients with debilitating medical conditions.

More than 1,200 doctors now signed up for medical marijuana program

The number of doctors signed up to recommend medical marijuana to patients in Florida has exploded this year and now totals more than 1,220.

The Florida Department of Health’s Office of Medical Marijuana Use, formerly called the Office of Compassionate Use, has been authorizing an average of more than 20 doctors a week this year to assist patients seeking to use marijuana products.

That total has more than quadrupled since Florida votes approved Amendment 2 on Nov. 8 of last year. In the state’s first two years of the program, through the date of that election, just 290 doctors had taken the eight-hour state class and become authorized to approve patients for the program.

Under Amendment 2, the Department of Health is working out regulations for patients to be able to use marijuana products for a wide range of debilitating conditions, as defined by the doctors. Prior to Amendment 2, qualifying conditions were limited to epilepsy and a handful of other neurological conditions, plus cancer.

Meanwhile, the products already are widely for sale. There now are a dozen companies licensed to produce the products from marijuana in Florida, and they have been opening dispensaries one at a time throughout the state.

Data from the Office of Medical Marijuana Use shows health care practitioners authorized to recommend patients for the program now can be found in 47 counties.

By far, the most are in South Florida. The data shows 208 authorized doctors in Miami-Dade County, 118 in Broward, 116 in Palm Beach, and 15 in Monroe.

The Tampa Bay area has 98 authorized physicians in Hillsborough County and another 98 in Pinellas, 22 in Pasco County, 19 in Manatee, and 17 in Polk.

The Central Florida area has 42 such physicians in Orange County, 26 in Seminole, 23 in Lake, 23 in Volusia, 15 in Brevard, and eight in Osceola.

The Jacksonville area has 37 authorized physicians in Duval County, 12 in St. Johns, and six in Clay.

Southwest Florida authorized doctors include 36 in Lee County, 35 in Sarasota, 15 in Collier and 13 in Charlotte.

There are 15 physicians authorized to recommend marijuana-derived medicines in Leon County, and 14 in Alachua County.

Among those physicians, by far the most-common speciality is internal medicine, with more than 400 holding that specialty. At least another 243 doctors listed family medicine, while 134 listed anesthesiology. Among others, at least 77 doctors listed pain management as a specialty,  65 listed various neurology specialties, and at least 65 listed various pediatric specialities.

Most authorized doctors listed more than one speciality, and some listed highly-specialized areas that could fall into one or more of the broader categories.


Smoke this: John Morgan adds plaintiffs to marijuana lawsuit

Medical marijuana advocate John Morgan has added three more plaintiffs to his lawsuit against the state, filed after lawmakers refused to allow marijuana to be smoked, according to court filings accessed Wednesday.

Diana Dodson of Levy County, a cancer patient; Catherine Jordan of Manatee County, who has Lou Gehrig’s disease; and Roberto Pickering of Leon County, who suffers from post-traumatic stress disorder; all qualify to use medicinal cannabis under a constitutional amendment passed last year.

Their names were added to the action this week. Also, Circuit Judge Karen Gievers allowed Morgan an extra 30 days to file an amended complaint in the case, first lodged in July by People United for Medical Marijuana, the political committee behind the amendment.

The suit seeks a declaratory judgment that the smoking ban runs counter to the amendment’s language.

Lawmakers recently approved and Gov. Rick Scott signed into law an implementing bill (SB 8-A) for the amendment that does not allow medicinal marijuana to be smoked.

House Republican Leader Ray Rodrigues, who sponsored the implementing bill during both the Regular Session and Special Session, has said “we don’t believe you smoke medicine.” Edibles and “vaping” are permitted, however.

“We believe that smoking causes as much harm as the benefits, particularly when we’re offering vaping, which provides all of the benefits and none of the harm,” Rodrigues has said.

“The people of Florida knew exactly what they were voting on,” Morgan told reporters after he filed the suit in Tallahassee. “(T)he vast majority, if not 100 percent, knew that smoke was included … I’m right, and 71 percent of the people of Florida know I’m right.”

Morgan, the Orlando-based attorney and entrepreneur, backed the amendment that was OK’d by 71 percent of voters last year on the statewide ballot.

The lawsuit says the legislative intent of the bill clashes with voter intent expressed in the amendment. For example, a doctor may determine that smoking marijuana gives a particular patient the best benefit of the drug, Morgan said.

By “redefining the constitutionally defined term ‘medical use’ to exclude smoking, the Legislature substitutes its medical judgment for that of a licensed Florida physician and is in direct conflict with the specifically articulated Constitutional process,” the suit says.

Moreover, since the amendment “does not require that the smoking of medical marijuana be allowed in public,” that means “that smoking medical marijuana in a private place in compliance with the provisions of the amendment is legal.”

Morgan also has cited a study published in the Journal of the American Medical Association in 2012 that “despite decades of marijuana being … smok(ed) in the United States, there have been no reported medical cases of lung cancer or emphysema attributed to marijuana.”

The suit names as defendants the state, the Department of Health, state Health Secretary and Surgeon General Celeste Philip, Office of Medical Marijuana Use Director Christian Bax, the state Boards of Medicine and Osteopathic Medicine, and their respective chairs, James Orr and Anna Hayden.

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